π engaged ∆ to ship 154,660 boxes from Ecuador to Germany. However, only 110,660 boxes were loaded, and the remaining 43,000 were left on the wharf and disposed of upon spoiling.
Many of the 111,660 boxes that made it to Germany had bananas in bad condition. π hired Mr. Winer to inspect. ∆ wanted to depose Winer. π objected because Winder was a non-testifying expert, protected under FRCP 26(b)(4)(D).
Issues
Issue 1: whether Winer qualified as a non-testifying expert, and
Issue 2: if so, whether ∆ could depose Winer under the pretense of FRCP 26(b)(4)(D)(ii)'s "exceptional circumstances" provision.
Winer was hired to inspect upon arrival in Germany and‚ even after his inspection and report to π (which was protected), ∆ could have sent someone to inspect the ship.
Even then ,the ship stayed at port in Germany for weeks, and the crew could have inspected during the voyage.
While Winer is protected from deposition, his file he created is not.
Judgment: ∆'s motion to compel deposition is denied; π to provide Winer's file to ∆.